Plaintiffs challenge also the manner in which the Board has been performing its functions.

The Chief Judge of the Circuit, under the authority of 28 U.S.C. § 291(c), designated Circuit Judge J. Skelly Wright to sit as a District Judge and to hear the case. Deeming the constitutional challenge to Section 31-101 not to be frivolous. Judge Wright, pursuant to 28 U.S.C. § 2284,
*fn1"
requested the Chief Judge of the Circuit to constitute a three-judge District Court to consider that issue. Hobson v. Hansen, 252 F. Supp. 4. The present three-judge court was constituted for that purpose. We convened and heard the motion of plaintiffs for summary judgment and the motion of defendants to dismiss count 1 of the complaint. This is the count which raises the constitutional question as to Section 31-101. Issues to be decided by Judge Wright alone are not discussed in this opinion.

Have the * * * [plaintiffs] alleged such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions?

Plaintiffs are not mere federal taxpayers, as was the plaintiff denied standing in Frothingham v. Mellon, 262 U.S. 447, 43 S. Ct. 597, 67 L. Ed. 1078. They are closely involved as pupils, or as parents and guardians who have the right to direct the education of children under their control, Pierce v. Society of Sisters, 268 U.S. 510, 534-535, 45 S. Ct. 571, 69 L. Ed. 1070 and the education of children is an important function of state and local governments. Brown v. Board of Education, 347 U.S. 483, 493, 74 S. Ct. 686, 98 L. Ed. 873. Defendants concede plaintiffs' standing to contest the manner in which the Board administers the schools. It is but a short step to standing also to challenge the constitutionality of the basic authority of the Board to do the administering. Unless persons in the position of plaintiffs have standing to do this the issue may escape resolution. This argues for resolving doubts in favor of plaintiffs in such a case; for there is no hard and fast rule which governs standing. As Mr. Justice Frankfurter said of a "case" or "controversy," whether or not standing emerges also depends in good part upon the "expert feel of lawyers." Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 594, 72 S. Ct. 863, 96 L. Ed. 1153 (concurring opinion). The right to take steps by judicial means not only to have the schools administered by valid methods but also to have them administered by those who may validly do so, pertains to children who under public law attend the schools, and their parents and guardians. The views of the commentators are not uniform, but we think the better view supports our position in the circumstances of this case. Compare Davis, "'Judicial Control of Administrative Action': A Review," 66 Colum.L.Rev. 635, 659-666 (1966) and Jaffe, "Standing To Secure Judicial Review: Public Actions," 74 Harv.L.Rev. 1265, 1310 (1961), with Jaffe, Judicial Control of Administration Action, 459-500 (1965). And see Hart and Wechsler, The Federal Courts and the Federal System 174-75 (1953).

As a consequence of this provision and of Article III of the Constitution
*fn3"
our District Court
*fn4"
has a dual character. It shares the judicial power of the United States as a District Court established under Article III.
*fn5"
But it also has the powers conferred upon it in the exercise by Congress of its plenary legislative power over the District of Columbia. This dual character, with its combination of powers stemming from both Article I and Article III, is described in O'Donoghue v. United States, 289 U.S. 516, 545-546, 53 S. Ct. 740, 748, 77 L. Ed. 1356:

In dealing with the District, Congress possesses the powers which belong to it in respect of territory within a state, and also the powers of a state. Keller v. Potomac Elec. Co., 261 U.S. 428, 442, 443, 43 S. Ct. 445, 67 L. Ed. 731. "In other words," this court there said, "it possesses a dual authority over the District and may clothe the courts of the District not only with the jurisdiction and powers of federal courts in the several States but with such authority as a State may confer on her courts * * *. Subject to the guaranties of personal liberty in the amendments and in the original Constitution, Congress has as much power to vest courts of the District with a variety of jurisdiction and powers as a state legislature has in conferring jurisdiction on its courts. In Prentis v. Atlantic Coast Line Co., supra, [211 U.S. 210, 29 S. Ct. 67, 53 L. Ed. 150] we held that when 'a state Constitution sees fit to unite legislative and judicial powers in a single hand, there is nothing to hinder so far as the Constitution of the United States is concerned.' (211 U.S. at 225, 29 S. Ct. 67, 69, 53 L. Ed. 150, 158); Dreyer v. [People of State of] Illinois, 187 U.S. 71, 83, 84, 23 S. Ct. 28, 47 L. Ed. 79.

The dissent of Chief Justice Hughes, Mr. Justice Van Devanter and Mr. Justice Cardozo adds strength to the view of the majority concerning the powers Congress may confer on the courts of the District. Their disagreement was with the view that the courts of the District of Columbia were not merely courts established, to quote the dissent, "under the broad authority conferred upon the Congress for the government of the District of Columbia by paragraph 17 of § 8 of article I." 289 U.S. at 552, 53 S. Ct. at 751. They described this as a

While the dissenters considered that if the limitations with respect to tenure and compensation which attached to Article III courts were applicable to our local courts of general jurisdiction this would prevent attaching to the latter powers of an administrative sort, this in no way detracts from their view of the broad powers conferrable by Congress upon our courts
*fn6"
under Article I. Moreover, the view of the dissenters that Article III courts could not be vested with administrative responsibilities does not indicate that they would hold invalid such appointive power as is vested in the judges by Section 31-101 of our Code, especially in light of the appointive power which may be conferred upon Article III courts under Article II, § 2, cl. 2 of the Constitution, discussed in Part III of this opinion.

It has long been held that Congress may clothe District of Columbia courts not only with the jurisdiction and powers of federal courts in the several states but with such authority as a state may confer on her courts.

* * *

It is too late to hold that judicial functions incidental to Art. I powers of Congress cannot be conferred on courts existing under Art. III, for it has been done with this Court's approval. O'Donoghue v. United States, 289 U.S. 516, 53 S. Ct. 740, 77 L. Ed. 1356. In that case it was held that, although District of Columbia courts are Art. III courts, they can also exercise judicial power conferred by Congress pursuant to Art. I. The fact that District of Columbia courts, as local courts, can also be given administrative or legislative functions which other Art. III courts cannot exercise, does but emphasize the fact that, although the latter are limited to the exercise of judicial power, it may constitutionally be received from either Art. III or Art. I, and that congressional power over the District, flowing from Art. I, is plenary in every respect.

The foregoing is from the opinion of Mr. Justice Jackson, who announced the judgment of the Court and was joined in his opinion by Mr. Justice Black and Mr. Justice Burton. While there was no opinion which had the adherence of a majority of the Court, the correctness of O'Donoghue v. United States, supra, is unquestioned by the concurring and dissenting Justices. See 337 U.S. 582, 608-609, 638-640, 69 S. Ct. 1173, 93 L. Ed. 1556 Mr. Justice Rutledge, writing the concurring opinion for himself and Mr. Justice Murphy, could not join in the view that conferment by Article I of plenary powers to legislate for the District enabled Congress to extend to citizens of the District the right to invoke in nonfederal or diversity cases the jurisdiction of District Courts throughout the nation. He said:

I think that the Article III courts in the several states cannot be vested, by virtue of other provisions of the Constitution, with powers specifically denied them by the terms of Article III.

The dissenting opinion of Chief Justice Vinson, with whom Mr. Justice Douglas joined, makes clear that the difficulty confronting the Court in Tidewater was the enlargement by Congress through Article I of the judicial jurisdiction over cases or controversies of Article III courts not located in the District of Columbia. This difficulty does not accompany the conferment by Congress through Article I of an appointing power upon the judges of our District Court. In its reference to O'Donoghue, the Chief Justice's opinion states:

Two separate but related points concerning the case should be emphasized. The first is that since the District of Columbia courts may be given non-judicial duties, Butterworth v. United States ex rel. Hoe, 1884, 112 U.S. 50, 5 S. Ct. 25, 28 L. Ed. 656; Baldwin Co. v. Howard Co., 1921, 256 U.S. 35, 41 S. Ct. 405, 65 L. Ed. 816; Keller v. Potomac Electric Co., supra, [261 U.S. 428 (1923)] reliance upon that case to support the Act now under consideration is incompatible with the position that constitutional courts may only decide "cases" and "controversies" of a judicial nature. The second is that the rationale of the O'Donoghue case is, by its terms, limited to courts of the District.

337 U.S. at 638-639, 69 S. Ct. at 1206. And it was this concern for the limitation of the Article III "judicial power" to "cases" or "controversies" that, as it seems to us, was at the roots of the separate dissent of Mr. Justice Frankfurter, in which Mr. Justice Reed joined. 337 U.S. 582 at 646-655, 69 S. Ct. 1173, 93 L.Ed 1556. It should here be interpolated that the statute now before us does not attempt to confer a jurisdiction such as was involved in Tidewater. It lodges only a specific power of appointment in the judges. None of the various views expressed in Tidewater, particularly in reference to O'Donoghue, left any cloud on the power of Congress under Article I to authorize the judges of our District Court to exercise the power conferred upon them by Section 31-101. On the contrary.

Its plenary legislative power over the District accordingly enables Congress to place upon the District Court, or, as here, its judges, responsibilities which may be beyond the competence of other Article III courts and which are comparable to the responsibilities a State may confer on her courts.

As stated by Mr. Justice Douglas, with the concurrence of Mr. Justice Black, in his dissenting opinion in Glidden Co. v. Zdanok, 370 U.S. 530, 590 n. 1, 82 S. Ct. 1459, 8 L. Ed. 2d 671, in a respect consistent with the majority opinion in that case:

The District Court of the District of Columbia, like the "inferior courts" established by Congress under Art. III, § 1, of the Constitution, is an Article III court ( O'Donoghue v. United States, 289 U.S. 516, 53 S. Ct. 740, 77 L. Ed. 1356), even though it possesses powers that Article III courts could not exercise. Congress, acting under its plenary power granted by Art. I, § 8, to legislate for the District of Columbia, has from time to time vested in the courts of the District administrative and even legislative powers. See, e.g., Keller v. Potomac Electric Co., 261 U.S. 428, 440-443, 43 S. Ct. 445, 447-448, 67 L. Ed. 731 (review of rate making); Postum Cereal Co. v. California Fig Nut Co., 272 U.S. 693, 698-701, 47 S. Ct. 284, 285-286, 71 L. Ed. 478 (patent and trademark appeals); Federal Radio Comm'n v. General Electric Co., 281 U.S. 464, 467-468, 50 S. Ct. 389, 390, 74 L. Ed. 969 (review of radio station licensing; cf. Federal Radio Comm'n v. Nelson Bros. Co., 289 U.S. 266, 274-278, 53 S. Ct. 627, 631-633, 77 L. Ed. 1166). Congress has also authorized District Court judges to appoint members of the Board of Education. D.C.Code § 31-101.

We set forth in the margin illustrations of the scope of appointive authority conferred by the States on their courts and approved, from which it appears by the overwhelming weight of decision that such appointive power as is involved in Section 31-101 of our Code may be validly conferred by the States upon their courts.
*fn7"
It follows that Section 31-101 of our Code is a valid exercise of the legislative authority of Congress over this District, an authority commensurate with that which "a state may confer on her courts." O'Donoghue v. United States, supra 289 U.S. at 545-546, 53 S. Ct. at 748; National Mut. Ins. Co. v. Tidewater, supra 337 U.S. at 590, 69 S. Ct. 1173. Indeed, the special character of the District of Columbia, which has neither a local legislative body nor an elected local executive, argues for even greater discretion in Congress than is possessed by the States. That this may result in placing upon our District Court judges duties which other Article III courts may not perform would seem to be settled.

Pa. Act of April 5, 1867, P.L. 779, § 1, as amended, Pa. Act of May 25, 1874, P.L. 228, 24 P.S. § 1964, 17 P.S. §§ 252, 253. Congress was impressed by the success of this state procedure, which had been in effect more than thirty years. The similar policy adopted by Congress in the enactment of Section 31-101 we think finds its validity in Article I of the Constitution.

III.

We could rest alone upon Article I, but Section 31-101 gains support also from Article II, § 2, cl. 2, of the Constitution. After providing that the President "shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law," clause 2 concludes with this provision,
*fn9"

but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.

This was a deliberate decision by the Framers to enable Congress in its wisdom to authorize "the Courts of Law" to share with the executive the appointing power of federal officers.

Mr. Justice Story approved the provision in his Commentaries:

The propriety of this discretionary power in Congress, to some extent, cannot well be questioned. If any discretion should be allowed, its limits could hardly admit of being exactly defined; and it might fairly be left to Congress to act according to the lights of experience. It is difficult to foresee or to provide for all the combinations of circumstances which might vary the right to appoint in such cases. In one age the appointment might be most proper in the President; and in another age, in a department.
*fn10"

Read literally, Article II, § 2, cl. 2, sustains the validity of Section 31-101.
*fn11"
The contention is made, however, that the provision is not to be read literally,
*fn12"
that In the Matter of Hennen, 38 U.S. (13 Pet.) 230, 10 L. Ed. 138, the Supreme Court construed the appointive power of "the Courts of Law" to include only officers related in some manner to the judicial function. In Hennen the United States District Court for the Eastern District of Louisiana had appointed a clerk of court. The language of the Court relied upon by plaintiffs is the following:

The appointing power here designated, [Article II, § 2] in the latter part of the section, was, no doubt, intended to be exercised by the department of the government to which the officer to be appointed most appropriately belonged. The appointment of clerks of courts properly belongs to the courts of law; and that a clerk is one of the inferior officers contemplated by this provision in the constitution cannot be questioned.

38 U.S. (13 Pet.) at 257-258.

This statement was not a decision by the Court that Congress could confer upon "the Courts of Law" the power to appoint only officers concerned with the administration of justice. Ex parte Siebold, 100 U.S. 371, 25 L. Ed. 717, explicitly refutes such an interpretation of Hennen. In Siebold the question was whether Congress could constitutionally confer upon the United States Circuit Court of that period (1879) authority to appoint supervisors of a congressional election. It was contended Congress could not do so since the duties of the supervisors were entirely executive in character. The Court answered:

It is no doubt usual and proper to vest the appointment of inferior officers in that department of the government, executive or judicial, or in that particular executive department to which the duties of such officers appertain. But there is no absolute requirement to this effect in the Constitution; and, if there were, it would be difficult in many cases to determine to which department an office properly belonged. * * *

The court was authorized by the statute upheld in Siebold only to appoint the supervisors, not in any way to perform the function of supervision. So, too, in the present case, the District Judges are authorized by Section 31-101 to appoint the members of the Board,
*fn13"
not to administer the schools.
*fn14"
And see Russell v. Cooley, 69 Ga. 215.

We are cited to no case, and we have found none, which holds invalid an Act of Congress conferring appointive power upon a court or the judges of a court. In a number of instances the power has been conferred in this jurisdiction. This is not conclusive on the issue of validity, but it demonstrates the deep-seated congressional view of the constitutional issue; and this is entitled to weight when the issue is before the courts. Our District Court has been authorized by Congress to appoint Jury Commissioners, D.C.Code § 11-1401, assumed to be valid in Collazo v. United States, 90 U.S.App.D.C. 241, 250, 196 F.2d 573, 582, cert. denied, 343 U.S. 968, 72 S. Ct. 1065, 96 L. Ed. 1364; and to appoint The Register of Wills, D.C. Code § 19-401. Its judges are authorized to appoint members of the District of Columbia Mental Health Commission, D.C.Code § 21-502. And our District Court, along with all other District Courts, is authorized to appoint and remove United States Commissioners, 28 U.S.C. § 631; and to appoint interim United States Attorneys, 28 U.S.C. § 506, United States v. Solomon, supra; and interim United States Marshals, 28 U.S.C. § 545. Authority is conferred upon the several Chief Judges of the Courts of the District to appoint the Board of Trustees of the Legal Aid Agency, D.C.Code § 2-2204.
*fn15"

The court in Cooper also refers to Story's views of the doctrine of separation, that it was to be understood "in a limited sense."

There is no constitutional principle that federal judges may not engage officially in nonjudicial duties. There is the constitutional principle that Article III courts may not engage in adjudicatory or decisional functions except in those "cases" and "controversies" referred to in Article III. The first Chief Justice of the United States illustrated the distinction. He led the Court in declining to give advisory opinions to President Washington; but a few years later when still Chief Justice he saw no constitutional objection to becoming the American negotiator with England of the important Jay treaty which bears his name. This was not without controversy, albeit in good part politically motivated. The Jay experience is mentioned simply as an outstanding illustration of the difference between functions which may not be required of Article III courts or their judges and functions of a non-judicial character which are not barred by the Constitution.

There are several limitations upon the duties which judges may be called upon to perform, aside from the "cases" or "controversies" limitation above referred to. There is a limitation based upon policy or propriety; there is also the limitation of "incongruity" referred to in Ex parte Siebold ; and there is the constitutional limitation that the function be consistent with the "guaranties of personal liberty" referred to in O'Donoghue ; but there is no constitutional limitation based simply upon the function being "non-judicial." In the present case the policy decision has been made by Congress. The "incongruity" problem is solved for the District of Columbia in the present case by the express grant to Congress of power to invest even Article III courts with authority to appoint "inferior Officers"; for whatever the scope of this power for other Article III courts, it plainly permits our District Court judges, clothed also with authority stemming from legislation under Article I, to accept the duties imposed by Section 31-101. And there is no invasion of the "guaranties of personal liberty" referred to in O'Donoghue - a subject we shall advert to more fully in discussing the due process issue.

We now discuss further the due process issue, although plaintiffs do not rely heavily upon this, and it was not referred to by Judge Wright in his opinion justifying his request for a three-judge court to consider the constitutional validity of Section 31-101. See Hobson v. Hansen, supra. The constitutional authority for the legislation, whether Article I alone or considered with Article II, is very persuasive, if not dispositive, on the due process issue. The contention is made, however, as we understand it, that the appointive power conferred upon the judges is violative of due process of law because litigation may arise before the District Court over the manner in which the Board administers the schools.

Initially we treat this problem as though the appointive power which may be exercised by "the Courts of Law" pursuant to Article II of the Constitution is limited, as plaintiffs contend, to inferior officers associated with the judicial department.
*fn17"
It has never been suggested and can hardly be contended that anyone is deprived of life, liberty, or property without due process of law merely because the official conduct of such an appointed officer might be questioned in a case or controversy in the court which appointed him. Congress does not violate the Due Process Clause by authorizing a District Court to appoint a clerk or deputy clerk of court, or an interim marshal or United States attorney, or members of the Mental Health Commission, or referees, or court reporter, notwithstanding their official conduct might become involved in litigation before the appointing court. If this invalidated legislation authorizing the courts to make such appointments, it would seem to follow, a fortiori, that a judge could not pass upon a case which challenged the official action of the official who appointed him - so to hold would cause a substantial part of our governmental structures to collapse.

A judge who has a substantial interest in or one of several specified personal connections with a case, must disqualify himself. 28 U.S.C. § 455. And if a litigant feels that a judge would have a personal bias or prejudice, he may have the judge disqualified by filing a "sufficient affidavit." 28 U.S.C. § 144. But the possibility of such instances arising does not affect the validity of Section 31-101.
*fn18"

A fair trial in a fair tribunal is a basic requirement of due process. Fairness of course requires an absence of actual bias in the trial of cases. But our system of law has always endeavored to prevent even the probability of unfairness. To this end no man can be a judge in his own case and no man is permitted to try cases where he has an interest in the outcome. That interest cannot be defined with precision. Circumstances and relationships must be considered. This Court has said, however, that "Every procedure which would offer a possible temptation to the average man as a judge * * * not to hold the balance nice, clear, and true between the State and the accused denies the latter due process of law." Tumey v. State of Ohio, 273 U.S. 510, 532, 47 S. Ct. 437, 444, 71 L. Ed. 749. Such a stringent rule may sometimes bar trial by judges who have no actual bias and who would do their very best to weigh the scales of justice equally between contending parties. But to perform its high function in the best way "justice must satisfy the appearance of justice." Offutt v. United States, 348 U.S. 11, 14, 75 S. Ct. 11, 13, [99 L. Ed. 11].

In Murchison a judge had conducted contempt proceedings against two persons for having refused to answer questions the judge had put to them as witnesses in a "one man grand jury" which the same judge had conducted under state law:

It would be very strange if our system of law permitted a judge to act as a grand jury and then try the very persons accused as a result of his investigations.

349 U.S. at 137, 75 S. Ct. at 625.

In Tumey v. State of Ohio, referred to in Murchison, the official authorized to act had a pecuniary interest in the outcome; and in Offutt v. United States the Court pointed out that the judge had become so "personally embroiled" with defense counsel in the actual trial of the case and displayed such personal animosity that the contempt conviction by the judge had to be set aside, the matter to be tried by another judge.

Plaintiffs cite Cooley on the due process issue as follows:

[A] legislative act which should undertake to make a judge the arbiter in his own controversies would be void, because, though in form a provision for the exercise of judicial power, in substance it would be the creation of an arbitrary and irresponsible authority, neither legislative, executive, nor judicial, and wholly unknown to constitutional government.

The motion of plaintiffs for summary judgment is denied, and the motion of defendant Judges to dismiss is granted as to Count 1 of the complaint.

Our website includes the main text of the court's opinion but does not include the
docket number, case citation or footnotes. Upon purchase, docket numbers and/or
citations allow you to research a case further or to use a case in a legal proceeding.
Footnotes (if any) include details of the court's decision.

Buy This Entire Record For
$7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.